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Justices Take Case on President’s Power to Detain

WASHINGTON — The Supreme Court agreed on Friday to decide the most fundamental question yet concerning executive power in the age of terrorism: May the president order the indefinite military detention of people living legally in the United States?

The case concerns Ali al-Marri, the only person on the American mainland being held as an enemy combatant, who is in custody at the Navy brig in Charleston, S.C. Mr. Marri, a citizen of Qatar, was legally in the United States when he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

Eighteen months later, when Mr. Marri was on the verge of a trial on credit card fraud and other charges, President Bush declared him an enemy combatant, moving him from the custody of the Justice Department to military detention. The government says Mr. Marri, who has been held in isolation for more than five years without being charged, is a Qaeda “sleeper agent” sent to the United States to commit mass murder and disrupt the banking system.

The central question in the case is whether Mr. Marri should be treated as an enemy soldier who may be held until hostilities end or as a criminal like Timothy J. McVeigh, who was convicted in a civilian court of blowing up the Oklahoma City federal building.

Matthew Waxman, a former Defense Department official with responsibility for detainee affairs, said the answer to the question in Mr. Marri’s case could affect some prisoners being held at Guantánamo Bay, Cuba, who also have not been accused of fighting American armed forces on behalf of a foreign nation or group.

“The main legal issue at stake here,” said Mr. Waxman, who is now a law professor at Columbia, “is what does it mean to be an enemy combatant in a war against Al Qaeda?”

The case, which will probably be argued in March, will present the Obama administration with a series of difficult strategic choices. It can continue to defend the Bush administration’s expansive interpretation of executive power, advance a more modest one or short-circuit the case by moving it to the criminal justice system or by deporting Mr. Marri.

In a statement, Brooke Anderson, a policy adviser and spokeswoman for Barack Obama’s transition team, declined to comment on the case. Ms. Anderson said Mr. Obama would decide how to handle detainees when his full national security and legal teams were in place.

A Justice Department spokesman, Dean Boyd, said only that “we look forward to making our case to the Supreme Court.”

Jonathan Hafetz, a lawyer for Mr. Marri with the American Civil Liberties Union, said the Bush administration’s assertion that it had the power to detain lawful residents indefinitely and without charges must be addressed.

“This assertion should never have been made, should never be made again and should be struck down,” Mr. Hafetz said.

Photo

Ali al-Marri, arrested in 2001.Credit
Peoria Journal Star

Last July, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a fractured decision in the case. In one 5-to-4 ruling, the court said the president had the legal authority to detain Mr. Marri.

But a second, overlapping 5-to-4 majority of the court ruled that Mr. Marri must be given an additional opportunity to challenge his detention in federal court. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.

The government had urged the Supreme Court to put off consideration of the case, Al Marri v. Pucciarelli, No. 08-368, until the trial court proceeding was redone.

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Two other men have been held as enemy combatants on the American mainland since the Sept. 11 attacks. Rulings in their cases will inform the Supreme Court’s treatment of Mr. Marri.

In Hamdi v. Rumsfeld, five justices of the Supreme Court said in 2004 that Congress had granted the president power to detain at least those enemy combatants captured on the battlefield in Afghanistan, even if they were American citizens, for the duration of hostilities there. But the detainee in that case, Yaser Hamdi, was freed and sent to Saudi Arabia not long after the court’s decision, which also allowed him to challenge his detention.

Based on the Hamdi decision, the Fourth Circuit in 2005 upheld the detention of Jose Padilla, an American arrested at a Chicago airport. Although Mr. Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision largely turned on his activities on the battlefield in Afghanistan. Just before the Supreme Court was to decide whether to hear his case for a second time, Mr. Padilla was transferred to the criminal justice system. He was convicted last year on charges related to terrorism.

The Supreme Court’s decision in Mr. Marri’s case may be quite limited, given his unique status, or quite broad.

The divided three-judge Fourth Circuit panel that ruled in June 2007 for Mr. Marri, in a decision later vacated by the full court, based its ruling on a proposition that could be applied broadly should the Supreme Court adopt it. Judge Diana Gribbon Motz wrote for the majority that Mr. Marri was a civilian and may not be detained by the military.

Because Mr. Marri was not alleged to have fought with the Taliban or the armed forces of any enemy nation or to have engaged in combat with United States forces, Judge Motz reasoned, President Bush was powerless to have the military detain him, just as he could not have ordered the military detentions of “the Unabomber or the perpetrators of the Oklahoma City bombing.”

In a recent brief, the government provided the justices with a sworn 2004 statement from Jeffrey N. Rapp, the military intelligence official. The statement, declassified in 2006, said Mr. Marri had met with Osama bin Laden and Khalid Sheikh Mohammed, the chief 9/11 plotter, in the summer of 2001. “Al-Marri offered to be an Al Qaeda martyr or to do anything else that Al Qaeda requested,” Mr. Rapp said. The Qaeda leaders told Mr. Marri, the statement said, to leave for the United States and to make sure he got there before Sept. 11.

The government’s brief said Congress must have intended to allow the detention of people like Mr. Marri and called a contrary interpretation absurd. Such a reading, the brief said, “relies on the assumption that when Congress authorized the use of military force to respond to the Sept. 11 attacks, it did not intend to reach individuals virtually identically situated to the Sept. 11 hijackers.”

In a brief filed last month, lawyers for Mr. Marri said the court should not delay consideration of the case.

“Since the nation’s founding,” the brief said, “persons lawfully residing in this country have correctly understood that they can be imprisoned for suspected wrongdoing only if the government charges them with a crime and tries them before a jury.”

A version of this article appears in print on , on Page A11 of the New York edition with the headline: Justices to Rule on Detainee Held in U.S. in Terror Case. Order Reprints|Today's Paper|Subscribe